Defining death won't stop disputes over ventilation removal

By AdvocateDaily.com Staff

A legislated definition of death would do little to prevent court challenges from family members who believe their loved ones are still alive after they've been declared neurologically dead by physicians, Toronto health lawyer Mary Jane Dykeman tells AdvocateDaily.com.

An Ontario judge recently dismissed a family’s request for their daughter to remain on mechanical ventilation, despite doctors declaring her dead, according to neurological criteria.

The family argued that she could not be deceased so long as her heart was beating, but failed to convince Justice Lucille Shaw that their religious beliefs on the subject should factor into any declaration of death.

"The medical determination of death cannot be subject to an individual's values and beliefs,'' she wrote. "Death is a finding of fact. To import subjectivity to the definition of death would result in a lack of objectivity, certainty and clarity.''

Shaw found that the common law definition “includes brain death,” which she said should be determined based on medical criteria set out in a consensus statement of expert physicians published more than a decade ago by the Canadian Medical Association Journal.

“It is important that the law keeps up with technological and medical advancements, which, in turn, is consistent with permitting the medical community to establish the practice or guidelines to determine brain death,” the judge added.

Still, Dykeman, a partner with DDO Health Law, says there’s no pressing need for Ontario to follow the example of jurisdictions such as Manitoba, whose Vital Statistics Act defines when a legal death occurs, referencing “irreversible cessation of all that person’s brain function." Other provinces also spell out the definition in laws concerning organ and tissue donation.

“I’m not sure that a statutory definition in Ontario’s Vital Statistics Actwould be a game-changer. It may be more convincing to some people if they could see the definition written down in law, but it won’t change the accepted clinical standard of brain death at the heart of this case, nor the emotion and passion that people bring to the issue,” she says. “There will probably always be people who raise issues about the actual death of a family member.

“These are challenging situations, but the decision was a very thoughtful one,” Dykeman adds. “This case does more than a legislative definition would to clarify the state of law, at this time."

Most cases resolve at an earlier stage as family members are supported to understand that the individual is, in fact, deceased, but hospital and physicians’ counsel will always closely watch the few cases that don’t resolve, where the intervention of the courts is sought, she says.

The most recent case is also significant for the judge’s finding that Ontario’s Consent and Capacity Board (CCB) has no jurisdiction to hear disputes over an individual once declared brain dead, which has been made by the CCB itself in successive decisions, Dykeman says.

The board, which deals with medical treatment and the capacity of people to make health-care decisions, can only rule on issues concerning living patients, ruled Shaw, who also concluded that the woman’s Charter rights were not an issue for similar reasons, says the court document.

“This won’t be the last case we see, but what is sure at this time is that the CCB will not be part of the process,” Dykeman says.

The woman at the centre of the case was found unresponsive from a drug overdose in September 2017, and after a week in hospital, was assessed as brain dead by a number of physicians, says the judge's reasons.

The injunction keeping her on mechanical ventilation will remain in place until the expiry of the 30-day deadline for an appeal by the woman’s family, or until the final disposition of any appeal, the document says.